Justice Brett Kavanaugh expressed surprise Tuesday that schools in a state founded on religious liberty are now banning parents with religious objections from opting their young children out of LGBTQ storybook lessons.
In Mahmoud v. Taylor, a majority of the Supreme Court appeared ready to side with parents who want to opt their children out of Montgomery County Board of Education’s mandated storybook readings involving pronouns, transgender children and pride parades.
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“I guess I am a bit mystified, as a lifelong resident of the county, how it came to this,” Kavanaugh said during oral arguments. “Can you just tell us what happened in March 2023?”
Eric Baxter, senior counsel for the Becket Fund for Religious Liberty, said the district promised for an entire year that parents would be notified and allowed to opt-out of the lessons.
“The last notice happened on March 22, 2023,” he said. “The very next day, overnight, with no explanation, the board came out and said we’re changing the rule because we want all students to be instructed on inclusivity.”
Alan Schoenfeld, attorney for the school district, told the justices it stopped offering opt-outs when it became unworkable.
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However, the district already offers opt-outs for religious concerns about musical performances, dissections, and high school sex ed classes — “virtually everything else under the sun,” Principal Deputy Solicitor General Sarah Harris said.
“The one thing they don’t allow is the exemptions for the storybooks,” Harris said.
Several justices suggested the school’s curriculum does not merely expose children to ideas without requiring them to affirm what is being taught.
“Is that a realistic concept when you’re talking about a 5-year-old?” Chief Justice John Roberts asked.
Justice Amy Coney Barrett noted that presenting an idea as fact is not the same as exposing students to an idea.
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“It’s saying this is the right view of the world,” she said. “This is how we think about things. This is how you should think about things. This is like, 2+2 is 4.”
Justice Neil Gorsuch also raised questions about statements made by board members involved in the policy, noting some suggested students were parroting parents’ “dogma” and that parents were promoting hate, taking a viewpoint endorsed by white supremacists and xenophobes.
“Does that suggest a hostility towards religion?” he asked.
Last year, the Fourth Circuit Court of Appeals held 2-1 that the district did not burden the parents’ free exercise rights because their children’s mere exposure to the books did not coerce them to “change their religious beliefs or conduct.” The justices probed both sides to determine the proper test for whether religious exercise had been burdened.
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Justice Elena Kagan noted there were probably many non-religious parents who “weren’t all that thrilled” about the books but wondered if siding with the parents would mean “opt-outs for everyone.”
Justice Ketanji Brown Jackson worried how far the opt-outs could go, questioning how it would apply to a teacher displaying a photo of his gay wedding or student groups putting up “love is love” posters around the school.
“What about a trans student in the classroom…must the teacher notify the parents of the student’s existence and give them an opt-out to not be in the same classroom with this child?” she asked.
Justice Sonia Sotomayor threw out her own hypotheticals: Would it be coercive to expose children to content involving divorce, interfaith marriage, or immodest dress? What about parents who object to biographies about women recognized for their achievements outside the home?
“Some people believe women should not work,” she noted.
In the end, Kavanaugh came back to Montgomery County’s status as “a beacon of religious liberty for all these years.”
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“Maryland was founded on religious liberty and religious tolerance, a haven for Catholics escaping from persecution in England going back to 1649,” he told Schoenfeld. “I guess I’m surprised, given that this is the hill we’re going to die on in terms of not respecting religious liberty.”
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First published by the Daily Caller News Foundation.
